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i" f) 6�JjsEfi { �,mx,;, • Human R,ghts ou, Collective Responsibility Human and Peoples' Rights would compromise their capacity to present their case proficiently and safeguard their rights throughout the legal proceedings.49 158. In addition to the guarantees provided in Article 7 of the African Charter, which protects the right to legal representation and a fair trial, it is noteworthy that the 2019 Constitution of Sudan reinforces these rights. Article 52(6) of the Sudanese Constitution explicitly acknowledges that " the accused has the right to defend himself personally or through an attorney he selects." so The inclusion of this provision in the Sudanese Constitution serves as a testament to the country's dedication to upholding the rights of individuals within the criminal justice system. It recognizes the accused's entitlement to present their defense personally or by their chosen legal counsel. This constitutional prov1s1on underscores the significance of ensuring effective legal representation and that individuals can actively participate in their defense. It emphasizes autonomy and the right to make informed choices in safeguarding one's rights during legal proceedings. By enshrining this provision, Sudan demonstrates its commitment to the principles of fairness, justice, and ensuring the proper administration of the criminal justice system. The Sudanese Constitution aligns with the principles articulated in 159. Article 7 of the African Charter by explicitly acknowledging the right to self defense or legal representation. Both legal instruments underscore the fundamental importance of the right to legal counsel and the freedom to choose one's defense strategy. These provisions are crucial for safeguarding individuals' rights and upholding the principles of fairness and justice within the legal process. The Sudanese Constitution demonstrates its commitment to ensuring a fair and equitable legal system by recognizing and upholding these rights. After careful consideration of the allegations and analysis presented, it 160. is evident that denying access to legal representation during the Complainant's incommunicado detention for an extended period raises significant concerns. The Commission recognizes that this deprivation hampered the Complainant's ability to consult with his chosen counsel and undermined his ri trial. Moreover, it exposed him to a heightened risk of potent' other forms of ill-treatment by prison officials. i 'O 49 Ibid 50 The 2019 Constitution of Sudan, Article 52(6). IV> Otgan of �"' AfriGan n�' Union ,,.!ft}l -..;,. ,'f:4 37 African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region, The G ambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banju l@africa-union.org https:/achpr.au.int/0 0 a

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Communication 476/14 - Magdy Moustafa El- Baghdady v. Sudan

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Coercion / Duress
Cruel and Degrading Treatment
Damages and Compensation
Detention Facilities/Conditions
Freedom from Discrimination
Personal Liberty
Right to be Heard before a Competent Court
Right to Fair Trial
Right to Health
Right to Property
Torture and Ill Treatment

Case Head Notes: The Complainant, a British citizen, traveled from Egypt to Sudan to invest in a restaurant business, and also with the hope of venturing into a telecommunications business. Accordingly, the complainant and his friend took telecommunications equipment to Sudan, which they declared to the customs officers. In February 2011 his apartment was raided by National Intelligence and Security Services (NISS), he was accused of being a British/Israeli spy, and he was hand and foot cuffed, blindfolded and taken to an unknown location. The Complainant was interogated in Arabic even though he only speaks English and Polish, his hair was removed and, after being transfered to Kober Prison, he and his friend were severely beaten, injected with a sedative-like substance and subjected to humiliation and insults. The Complainant was denied medical attention. Shortly after being transfered to Kober Prison the Complainant, his friend, and other prisoners were subjected to a mock execution where officers placed guns at the back of their head and, upon the call of a high-ranking officer, cocked their guns as if to shoot. The Complainant stated that he and his friend were also forced to sign documents at gunpoint, which stated that they would not mention what happened at the prison. During the total of 78 days of incommunicado detention, at Kober Prison and a couple of other facilities, the Complainant suffered severe physical and psychological harm, losing approximately 37 kg of his original weight. The Complainant was found guilty, and ordered to either pay a fine of 5000 Sudanese Pounds, or return to Omdurman Prison for six months. One of the Complainant's relatives paid the fine, and the Complainant was released. The Complainant stated that he could not raise a complaint about his treatment while in Sudan as he faced threats of re-arrest and imprisonment. The Commission found a violation of Article 2 stating that the Complainant faced allegations of being a British, or Israeli spy, solely on the basis of his part-Polish heritage, with no substantial evidence to substantiate these claims. They also noted the deregatory language aimed at the Complainant's ethnic heritage, and stated that, the treatment of the Complainant, grounded in ethnic stereotypes rather than factual evidence, exemplied a discriminatory practice. The Commission found a violation of Article 5, and stated that both the incommunicado detention of the Complainant and the physical attacks against the Complainant amounted to torture. Noting that even if arrests are deemed lawful under domestic legislation, they can still be regarded as arbitrary, and thus unlawful if they are inappropriate, unreasonable, unjustified, or unpredictable, the Commission found a violation of Article 6 and stated that the absence of any prima facie evidence, or reasonable suspicion, to justify the prolonged detention of the Complainant further undermined the legitimacy of his arrest and confinement. The Commission also noted that the lack of transparency and legal justification for his continued deprivation of liberty raises questions about the adherence to fundamental principles of justice and the rule of law. The Commission found a violation of Article 7 stating that denying the Complainant access to a lawyer and court hearing, during the victim's detention, constituted a clear violation of Article 7, and that, additionally, the Complainant's prolonged detention, without being brought before a Court, signified the Respondent State's failure to ensure its obligation of ensuring a timely trial. The Commission found a violation of Article 14 stating that, not only was the search of the Complainant's belongings arbitrary, but some of the belongings of the Complainant were either not returned, or returned in a damaged condition. The Commission affirmed that this violated the Complainant's right to peacefully enjoy his property and, also, to be compensated for the damage or confiscation of his property. The Commission also stated that no information indicated that the interference with the Complainant's right to property was proportionate to a reasonable objective the Respondent State may have hoped to achieve. Noting that the Respondent State has a responsibility to ensure that prisoners have access to appropriate healthcare and essential services, the Commission found a violation of Article 16 and stated that the torture inflicted on the Complainant had a profound and detrimental impact on his pysical and psychological well-being, and that the failure to provide the Complainant with necessary healthcare further exacerbated the situation. The Commission found a violation of Article 1, as they stated that any violation of any provision in the Charter inherently constitutes a violation of Article 1 as well. The Commission declared that the Respondent State must promptly investigate and prosecute the individuals responsible for the Complainant's ordeal, that the Respondent State must assess and determine the appropriate compensation to address the harm suffered, that the Respondent State must undertake institutional reforms to ensure that individuals alleging torture can effectively pursue complaints, that the Respondent State should improve detention conditions, that the Respondent State should consider specific amendments to the National Security Act of Sudan, and that the Respondent State should report to the Commission on the measures taken to implement the decision.

Country

Sudan

Outcome: Decided on Merits

Year Decided: Aug 2, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Duration of Procedure

Oct 25, 2013 ~ Aug 2, 2024

Country Geolocation

Latitude: 12.862807

Longitude: 30.217636

Country Geolocation (linked ACHPR Decision): Sudan

Primary Documents

Magdy Moustafa El-Baghdady v Sudan.pdf
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African Human Rights CLA 2.0

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Communication 476/14 - Magdy Moustafa El- Baghdady v. Sudan

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